Appendix B: Key tax cases relating to superannuation

The following legal cases are often quoted and relied upon as authorities when dealing with common superannuation and taxation issues. You can find these cases on the Tax Office website at <www.ato.gov.au>.

Carrying on investment business

Share trading and super funds

Federal Commissioner of Taxation v Radnor Pty Ltd (1991) ATC 4689

Shields v Deputy Commissioner of Taxation (1999) ATC 4783

Contributions to super fund

No employment relationship

France v Federal Commissioner of Taxation (2010) ATC 10–158

Employees and independent contractors

Associated Translators and Linguists Pty Limited v Federal Commissioner of Taxation (2010) AATA 260

Brilliant v Federal Commissioner of Taxation (2010) AATA 267

Brinkley v Federal Commissioner of Taxation (2002) ATC 2053

Federal Commissioner of Taxation v De Luxe Red and Yellow Cabs Co-operative (Trading) Society Ltd & Ors (1998) ATC 4466

Hollis v Vabu Pty Ltd (trading as Crisis Couriers) (2001) ATC 4508

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

World Book (Australia) Pty Ltd v Federal Commissioner of Taxation (1992) ATC 4327

Employee knowledge of super fund

Bayton Cleaning Co Pty Ltd v Federal Commissioner of Taxation (1991) ATC 4076

Employer super contributions

In excess of salary derived

Ryan v Federal Commissioner of Taxation (2004) ATC 2181

Financial assistance to members

Deputy Commissioner of Taxation (Superannuation) v Fitzgeralds & Anor (2007) ATC 5105

Journal entries (superannuation and set-off payments)

Harmony and Montague Tin & Copper Mining (1873) LR 8 LR Ch App 407

Loans and self-managed super funds

Eastern Nitrogen Ltd v Federal Commissioner of Taxation (2001) ATC 4164

Prime Wheat Association Ltd v Chief Commissioner of Stamp Duties (NSW) (1997) ATC 5015

ZDDD v Commissioner of Taxation (2011) AATA3 (10 January 2011)

Meaning (superannuation fund)

Mahoney v Federal Commissioner of Taxation (1967) 41 ALJR 232

Scott v Federal Commissioner of Taxation (No.2) (1966) 14 ATD 333

Walstern Pty Ltd v Federal Commissioner of Taxation (2003) ATC 5076

Provision for superannuation benefits

Raymor Contractors v Federal Commissioner of Taxation (1991) ATC 4259

Reimbursement of expenses incurred by trustees

RWG Management Ltd v Commissioner for Corporate Affairs (1985) VR 385

Residency test (self-managed superannuation funds)

CBNP Superannuation Fund v Federal Commissioner of Taxation (2009) ATC 10–105

Salary sacrifice arrangement and superannuation

Heinrich v Federal Commissioner of Taxation (2011) ATC 10–169

Self managed superannuation funds (breach of in-house rules)

JNVQ v Commissioner of Taxation (2009) AATA 522

Self managed superannuation funds

Death benefit payments

Donovan v Donovan (2009) QSC 26

Katz v Grossman (2005) NSWSC 934

Illegal access to super benefits

ASIC v Kossongo (MR 07–01)

Sole purpose test

Case 43/95 (1995) ATC 374 (Swiss Chalet case)

Federal Commissioner of Taxation v Roche (1991) ATC 5024

Special income

Dividends from private companies

Allen’s Asphalt Staff Superannuation Fund v Federal Commissioner of Taxation (2010) ATC 20–225

Darrelen Pty Ltd v Federal Commissioner of Taxation (2010) ATC 20–180

Substantially self-employed (10 per cent rule)

Edmonds-Wilson v Federal Commissioner of Taxation (1998) ATC 2276

Falson v Federal Commissioner of Taxation (2007) ATC 2438

Norris v Federal Commissioner of Taxation (2002) ATC 2091

Northey v Federal Commissioner of Taxation (2002) ATC 2001

Prooyen v Federal Commissioner of Taxation (2010) ATC 10–132

Superannuation guarantee charge

Australian Communication Exchange Ltd v Deputy Federal Commissioner of Taxation (2003) ATC 4894

Brilliant v Federal Commissioner of Taxation (2010) AATA 267

Care Provider v Federal Commissioner of Taxation (2010) AATA 475

Commissioner of Taxation v Newton (2010) FCA 1440

Griffiths & Ors v Federal Commissioner of Taxation (2009) AAT Case AATA 482

Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation (2009) ATC 10–106

Weston v Commissioner of Taxation (2008) 10–052

Superannuation Complaints Tribunal (leading cases)

Edington v Superannuation Complaints Tribunal (2010) FCA 504

Employers First v Tolhurst Capital Ltd (2005) FCA 616

Merkel v Superannuation Complaints Tribunal (2010) FCA 564

Tuftevski v Total Risks Management Ltd (2009) NSWSC 315

Vision Super Pty Ltd v Poulter (2006) FCA 849